States’ River Dispute Could Lead to Unusual Supreme Court Split

The U.S. Supreme Court is considering whether Delaware can block New Jersey from allowing a natural-gas storage and processing facility on the Delaware River.

At issue are the states’ rights under a 1905 agreement that allowed each state to exercise “riparian jurisdiction” over the river, jurisdiction that extends to the wharf that must be built for the plant. Lawyers for Delaware say it can block the wharf if it is dangerous or a nuisance under a Supreme Court decision giving it rights to the riverbed, the New York Times reports.

“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” said Justice Antonin Scalia during oral arguments yesterday.

But other justices seemed concerned that Delaware was overstepping by trying to veto the plant, Legal Times reports.

The court is hearing the case under its original jurisdiction to decide disputes between the states. Justice Stephen G. Breyer has recused himself, raising the possibility of a 4-4 split and no lower court ruling to be affirmed. A special master has recommended a ruling for Delaware.